What the FISA Review Court Ruling Means

Now, says Bowman, the agent "can report the crime he sees," and can talk to prosecutors without jeopardizing the ongoing intelligence collection. More important: there's probably never going to be a realistic chance of prosecuting everybody in a group on terrorism charges, but they "could break up the cell with criminal prosecutions. The goal here is prevention" — preventing the terrorist act, through whatever means. The more options law enforcement has at its disposal, the better the chances of preventing something.

A senior Justice official well-versed in FISA matters agreed that now, "law enforcement can talk to intelligence without fear, without chaperones, without reporting every little jot and tittle to the FISC." And "without fear the coordination will undermine the legitimacy of the FISA and lose the authority."

This official pointed out that in most national security cases there will continue to be both intelligence and law enforcement interests at work. Even once the director decides to prosecute, say, a mole, on whom a FISA is bringing in great evidence, the intelligence officers are still going to want the information. They want to know what's his tradecraft, what kind of information is he selling, is it only to the Russians or also the Chinese? How do they pass info back to him, how do they pay him? Almost all these details are going to be useful for both law enforcement and intelligence — and ultimately they both have the same goal.

The truth is, this official maintained, that "even if we're all jazzed up about prosecuting a guy, we still want to collect the information for intelligence." Prosecution is still just one way to prevent terrorism. Yes, prosecutors can help shape a case; "the law enforcement perspective is the value added." He is completely comfortable shifting an intelligence target into a prosecution mode: is it really any worse to lock somebody up after giving him a lawyer and a fair trial? He is "not bothered at all that we prosecute terrorists rather than killing them."

And it's not likely that a FISA order will be used against a Tim McVeigh, Bonnie & Clyde, or John Gotti: "Ordinary red-blooded American criminals can sleep soundly tonight knowing they're not going to be surveilled under FISA."

In-Depth FISA Training

As if in response to John Martin's admonition, both the FBI and Justice have been crashing plans to set up in-depth training programs on FISA procedures for the agents and prosecutors in the field. Bowman pointed out that the agents who've been doing this all along will not have much problem adjusting; most FISAs come out of the 17 or so of the bureau's largest field offices.

But for the new agents, or the agents new to counterterrorism, or in the smaller field offices, some have not even been accustomed to working with classified materials. Bowman noted, "there's a whole bunch of stuff out there that is not well understood." The logistics of the training, bringing in a couple hundred people, away from their jobs, for several days at a time, can be very difficult. But there are videotapes, and there will be a move toward distance learning.

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